Is anonymity fair play in politics?

An anonymous flyer making the rounds in the Albany school budget vote raises an intriguing issue: Is this the kind of free speech the Founding Fathers envisioned when they drafted the First Amendment?

The Supreme Court says yes; you can read the decision here. It concerned a woman, Margaret McIntyre, who was fined for passing out anonymous pamphlets opposing a school budget. She died before the case reached the high court, but her estate argued it was too important to let it drop, and the court agreed and took it up.

The majority noted that anonymous leaflets, pamphlets and newspapers (not to mention works of literature going back to Shakespeare) were an important part of the public discourse before and during the time when the Constitution was being written and ratified. So, the justices argue, anonymity undoubtedly was part of the freedom of speech that framers sought to protect. Moreover, there are good reasons why a person might not want to reveal their identity, and no particularly compelling one to force them to. And, forcing them to reveal their identity when they don’t want to is, essentially, forcing them to tailor their speech in ways they might prefer not to.

From the decision (I’ve trimmed here and there with ellipses mainly to remove case citations for easier reading):

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind…Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

The freedom to publish anonymously extends beyond the literary realm….[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. … Justice Black recalled England’s abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. …On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. …(The tradition of anonymity) is perhaps best exemplified by the secret ballot, the hard won right to vote one’s conscience without fear of retaliation.

In his dissent, Justice Antonin Scalia said there was no real historic basis for the court to conclude that the framers wanted to protect anonymous speech. He said the majority’s ruling opened the door to all sorts of parsing:

It may take decades to work out the shape of this newly expanded right to speak incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a “letters to the editor” column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on campus or off campus group that has sponsored or paid for the speech? Must a municipal “public access” cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end.

He also noted that the court has upheld disclosure laws in other election contexts, and that it was a reasonable safeguard against fraudulent campaigning:

I do not know where the Court derives its perception that “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.” I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid “threats, harassment, or reprisals” the First Amendment will require an exemption from the Ohio law. … But to strike down the Ohio law in its general application–and similar laws of 48 other States and the Federal Government–on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future.

To clarify the rules here: People who spend more than $1,000 to influence an election have to file with the state or local board of elections, depending on the race. But they don’t have to identify themselves or their committees in mailings, although many do. The only disclosure requirement is a Federal Communications Commission rule that broadcast political ads identify who paid for it.

What do you think? Do we have a right to anonymously try to influence elections, or is disclosure a fair concession to protect the integrity of the democratic process? Are we entitled to know who’s propaganda we’re reading, whether it’s Ms. McIntyere or the Koch Brothers or George Soros?

Should people who try to influence elections be allowed to remain anonymous?

4 Responses

I have been watching the blogs–mostly comment sections like this ones following an article or letter to the editor. Facebook is another popular forum for some ugly conversations. Some papers require an ID and some do not. Most block the really vile responses. However, many entries have included personal attacks and slander. When entered anonymously, this can only be described as cyber bulling. I cannot believe that the founding fathers would have condoned this as freedom of speech.

The truth is that anonymous flyer has been linked to those who support charter schools. Many charter school supporters sent inapproprate e-mails to board of education President Daniel Egan.
This is repeat of their prior tactics. That is why I will never sent my children to the charter schools. They have obtained the highest scores on the NYS ELA and NYS Math tests (without ever entering a charter school). In my opinion, charter schools are what’s wrong with Albany!

The fact that these inaccurate mailings may be protected by the First Amendment does not make them any less sleazy and gutless. I challenge these well-financed cowards to reveal themselves before the election. Are they afraid their identity would undermine their message?